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Gore Legal Team Responds to U.S. Supreme Court Ruling

Aired December 9, 2000 - 4:04 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GENE RANDALL, CNN ANCHOR: We're about to see David Boies. This is Ron Klain, a senior adviser to the Gore campaign and we will hear soon from David Boies, the chief recount attorney for the vice president.

RON KLAIN, GORE CAMPAIGN LEGAL ADVISER: ... we're disappointed for several reasons. First and foremost, we're actually quite pleased with the progress being made at the counts underway here in a number of counties.

Our latest information shows that 13 counties had completely or partially completed their recounts, and in those counties, Vice President Gore and Senator Lieberman had gained a net of 58 votes. Five of those counties were heavily Republican counties, so we believe that the progress made in the count thus far indicated that we were clearly on a path for Vice President Gore and Senator Lieberman to make up the difference and to pull ahead, had the count been fully completed.

Secondly, we obviously believe, as we told the Supreme Court in our filing this morning, that the balance of harms here weighed against a stay and weighed in favor of allowing these counts to be completed. We believe that the court's decision to stay the counting of the votes was obviously one we disagree with, and we wish the court had ruled otherwise.

But third, I think we remain very optimistic about the court -- about us ultimately prevailing in the Supreme Court when it hears this case on Monday. We believe that the decision of the Florida Supreme Court was correct, based on state law, and was a faithful and traditional application of this court's -- of this state's statutes and precedents in dealing with election contests. And we believe when the Supreme Court ultimately hears this case, that will be their conclusion.

The court's decision today, of course, as Secretary Baker noted, is not a ruling on the merits, and that will come later. And when that comes, we remain very hopeful that the court will rule with us and allow these counts to be completed -- David.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I would be pleased to answer a few questions if you have them.

QUESTION: I'd like to ask a question of Mr. Klain. (CROSSTALK)

(LAUGHTER)

QUESTION: On the 13 counties that you say 58 votes, there are other counties that are partially through that actually have shown Mr. Bush gaining votes. So that's kind of a...

KLAIN: No, the 58 is a net number of all 13 counties. So, yes, he gained some votes, we gained more than 58, and in the end, we gained -- as far as they got before they stopped, we gained a net of 58 votes in the 13 counties.

QUESTION: No, I understand. But there are other counties that haven't completed that Bush has gained votes. So on the overall number, you're trying to give the impression that we should subtract 58. No?

KLAIN: As you should. That is, that was the state of the counts when they were stopped. In partial counts or full counts, we gained votes, they gained votes. The net of all those results, based on the latest data, was Vice President Gore gaining a net of 58 votes.

And again, some of those were from very Republican counties. In Escambia County, which is a very heavily Republican County, we net gained three votes, which obviously is not a big gain, but it's in one of their counties.

So we felt very good about the progress of the counts.

KLAIN: And also, can I say one other thing: From a less partisan perspective, we thought the counts were proceeding forward in a very orderly fashion and a very thoughtful fashion. I thought it was heartening to watch the volunteers, the judges, in there doing it in a very thoughtful and orderly way.

And so we were very pleased with the nature and the tenor of the counts, as well.

QUESTION: Why would a justice who was inclined to believe the merits of your arguments vote for a stay?

KLAIN: Well, I think that the justices obviously made a decision that stopping the counts now was the right decision for now. I think when they see the full briefing in the case, when they hear the oral argument, we believe they will agree with our position that the Florida Supreme Court accurately, correctly and traditionally applied its statutes and its precedents to develop the remedy that it developed in this case. And we think that will be there conclusion here, David.

QUESTION: I'm just saying, Ron, help me understand why a justice who might be inclined to rule with you would vote for a stay?

KLAIN: Because the test on the court's precedents is a substantial probability, but not necessarily a certainty, that they will prevail on the merits. And obviously it's a decision by the justices that there are some chance that Governor Bush will prevail. But that isn't a decision that he will prevail. Again, Secretary Baker himself noted this is not a decision on the merits. And we believe, once the case is fully briefed and argued and presented to the court, they will affirm the decision of the Florida Supreme Court.

QUESTION: (OFF-MIKE) or David, can you tell us, then, a little more precisely, if the (inaudible) today was that the issues presented, they believe that Bush has a substantial probability of success. What can you say to rebut it? Is it the 58 votes that you're going to use? What's your ammunition now?

BOIES: Well, I don't think the 58 votes has anything to do with what the Supreme Court decides, or at least directly. I think the 58 votes indicates that if this count continues to go forward, it looks like, right now -- although nobody can be absolutely certain -- that Vice President Gore and Senator Lieberman would win the popular vote in Florida, just as they won the popular vote outside of Florida.

I think the thing that's important for the Supreme Court -- and Justice Scalia, who is one of the justices who votes for the stay, and he explains why he does that in his opinion, and what he says is that he doesn't want to have -- if President Bush is ultimately elected, he doesn't want to have the legitimacy of that presidency undercut by the fact that people will know that there were more votes for Vice President Bush -- for Vice President Gore than there were for Governor Bush in Florida.

Now we think that's wrong. We don't think that's the right way to look at it...

QUESTION: (OFF-MIKE)

BOIES: Let me finish the -- let me just finish the answer, OK?

We think the right way to look at it is the way the four dissenting justices looked at it, which is that the legitimacy of any president that's elected is going to be impaired unless the American people understand that there has been a full and fair count of all the votes.

However, accepting what Justice Scalia says, where that leads him is to say: I don't want to have that count go forward -- because a doubt has been raised about the adequacy of that count and the legality of that count -- I don't want to have that count go forward until the court has had an opportunity to decide this on the merits.

Now we may agree or disagree, and obviously we think the dissent had it better, but the fact of the matter is that the basis for the stay is a basis that says: We don't want this count to go forward and then have us overrule it, because that will be something that will cast in doubt the legitimacy of the presidency.

QUESTION: One thing that has been almost a mantra for the last couple of weeks now is time, that time has always been of the essence. You don't have oral arguments now until Monday, and we have December 12 is this Florida State Supreme Court deadline. How do you deal with the time issue now?

BOIES: I think the timing issue is probably the single most disappointing thing about what the Supreme Court has done. I think that if we had world (ph) enough in time, the fact that they stayed the count until they heard the merits on Monday really probably would not make any difference.

I think the reason that it makes a difference, and the reason that we are disappointed, is because it makes it much more difficult to get the count completed if the court rules that the count can go forward.

Now, given the progress that was made today, in just a few hours, I think we have some reason to be optimistic that if the court rules promptly after the argument that the count can go forward, the count could still be completed.

But there's no doubt that by delaying it, it has created a very serious issue as to whether that count can fully be completed or not by December 12.

QUESTION: So is that December 12 deadline that drop-dead now? Do you think December 18 is actually the real deadline?

BOIES: I think there's no doubt that December 18 is the final deadline. We've all been trying to get it done by December 12. I think that in the last week, everybody has recognized that, at least under certain scenarios, it would not be done by December 12.

For example, the legislature said that if it acted, it probably wasn't going to act until December 13, and that the December 12 deadline was not any magical end date. That's true.

Nevertheless, I think that because we have all felt that there was an advantage to the voters of Florida, and to the assurance that Florida's votes would be counted, to have it completed by December 12, that that was highly desirable. We've been working very hard towards that goal. And I think that this decision imperils that goal, to some extent.

QUESTION: But is it your belief, then, that December 18 is the real endgame and not December 12? Because it's been suggested that if the justices don't rule almost immediately on your arguments Monday, essentially that's the end of the line for Vice President Gore.

BOIES: Well, I don't know about essentially immediately, but obviously if the Supreme Court were simply to take this under advisement, leave the stay in effect, and not rule for a couple of weeks, that would in effect kill the ability to get the votes counted.

I don't think the Supreme Court's going to do that. I think the Supreme Court is acting with expedition. They have set a hearing on Monday. This is, after all, only Saturday. They have accelerated the briefing schedule.

So, I don't think the Supreme Court of the United States is going to let the clock run out on this anymore than the Supreme Court of Florida let the clock run out.

KLAIN: Can I add one other thing in response also, which is, I think the Supreme Court of the United States is very well aware of 3 U.S.C. 5 and the presence of December 12. And I think that when they rule on this case, they're likely to provide guidance on that issue as well.

They know the calendar. The calendar was briefed by both parties in the stay applications and stay oppositions, and I think we're likely to get some more guidance from the court on the relevance of that 12th in this decision.

QUESTION: Chief Justice Charles Wells, in a very strong dissent last night, talked about a constitutional crisis because of his colleagues. Your response to that, if this proceeds, the chief justice's concern?

BOIES: Chief Justice Wells had a point of view about the possibility of a constitutional crisis. That point of view was not shared by any of the other six justices, not even the other two justices that dissented.

So six out of the seven justices of the Florida Supreme Court did not see this as creating a constitutional crisis.

We don't think it creates a constitutional crisis, either. This is going to be resolved under the rule of law. Now it may be a rule of law that ends up with a decision that we agree with. It may be a rule of law that ends up with a decision that we disagree with. But we believe that this is going to be decided by the rule of law.

And we have always said that the courts were going to decide these cases that were brought. We think it is unfortunate that Governor Bush's campaign has taken this to the courts.

We believe that the right way for this to have been resolved was to have the votes counted in the political electoral process, and not to try to bring in the courts to interrupt that process. However, every person has a right to take a matter to court. And once the courts rule on that, that's the decision that is going to be abided by.

BOIES: You'll have to ask the vice president that. We have been, as you can imagine, trying to deal with the legal issues that we're faced with.

If I had come out here this morning, mid-morning, I would have been able to say how pleased we were that the Florida Supreme Court had turned down the stay. If I had come out around lunchtime, I could have said how pleased I was that the 11th Circuit had turned down the stay. I'm now out here saying how disappointed we are that the United States Supreme Court has granted that stay. There's been a lot going on today. We have been struggling to get our briefs, which are due on a very accelerated time schedule, fixed.

I'm sure that the vice president of the United States is disappointed that the vote count has been interrupted. We have said from the beginning that our goal was to have all the votes that have been cast counted, and that once those votes were counted, we thought that was the way elections in this country should be decided. And I'm sure he's very disappointed that that has been interrupted.

UNIDENTIFIED MALE: Two more.

QUESTION: Sir, you clearly think that you can shift at least the opinion of one justice. I won't ask you which one you think you can shift, but I will ask you this: What do think that your best argument will be to shift someone's opinion up there?

BOIES: I think there are three arguments, and I'm not sure which one's the best, and I probably won't be arguing it. And that person will have to decide what the best argument is.

But certainly one argument that's very important is that there is no federal question here. This is a matter of state law. And the Supreme Court of the United States has not, at least for 100 years, and maybe going back forward, ever stepped in to change the result of a national election by substituting its judgment as to how votes ought to be counted for the judgment of the local election officials.

So I think one of the things we would be urging the United States Supreme Court is that this is a matter of state law, state law is deserving of deference, and that the United States Supreme Court ought not to step in and substitute its judgment as to what the intent of the voter was for the judgment of the state officials that, under law, have that obligation.

The second argument is this is a conventional application of existing Florida law. As the dissenting justices point out, there are a series of cases, going back decades, in which the Florida Supreme Court has ruled consistently with what the Florida Supreme Court ruled this week. So what you have is not any change in Florida law, but the consistent application of Florida law.

The third thing that we would urge is that, as Justice Scalia indicates in his opinion, the standard is not whether they agree or disagree with the Florida Supreme Court, but was the Florida Supreme Court so unreasonable and arbitrary that there was simply no basis for what the Florida Supreme Court did.

And we think not only can they not meet that standard, they can't even meet the standard that says the Florida Supreme Court was wrong. But the plaintiffs, Governor Bush's team, have a very heavy burden under established Supreme Court precedent.

This is a situation -- you've heard lots of people talk about changing the rules of the game. This is a rule of the game that has been set in Florida for decades. The rules of the game have been, first, that the people elect the electors, and they do so by a majority of their votes.

The second principle is that all of the votes that have been cast are counted.

And the third principle is that when you can't read a vote through a machine, you have a manual recount. There's a statutory provision for that. statutory provision has been implemented in dozens of cases, most recently, the Beckstrom case two years ago. And Florida law is absolutely clean on this, and clear on this.

So that what you would be doing here is radically changing the rules of the game, right in the middle of the game. And what we're saying is, first, that shouldn't happen; and second, that certainly shouldn't happen by having a federal court come in and tell a state court: You've got to change the rules in the middle of the game.

UNIDENTIFIED MALE: Last question.

QUESTION: David, that first argument seems like a strange argument for you to make, that courts shouldn't step in and substitute their judgment for the judgment of local election officials, because the local election officials in Florida, and the state election officials in Florida, believe that Gore lost.

BOIES: No, I think that's not right, because right now what's going on around this state are counting of the votes by the local election officials.

QUESTION: Under a court order.

BOIES: Yes, under a court order that says count the votes. The court has said, "You must count the votes."

But what the voters intent is, whether there is a vote there for Vice President Gore or Governor Bush, is something that is being decided in every case, except one limited exception, by the local boards. That one limited exception is the Miami-Dade undervotes, and even there it's being done in conjunction with the supervisor of elections of Miami-Dade County. So that in every single instance, the votes that are being counted now are being counted by the boards that are given that responsibility.

The courts have said, "Count the votes," because the courts have said, "That's Florida law."

But what votes are counted and what votes are not counted -- which is what the Supreme Court, in Justice Scalia's concurring opinion, says they're interested in, that is, whether you're applying the right standard or not -- that standard is the standard that is being applied by the local boards, the people to whom Florida statutes and Florida cases have given that responsibility for decades.

QUESTION: Ron, didn't the judge last night rule that you guys weren't allowed to do running tallies? Wasn't that part of the order? And now you gave us a number earlier of 52 or 58 votes. Didn't the judge actually say, and I think everyone agreed, both sides agreed, not to do running tallies?

KLAIN: That's our best information. It's not a running tally. It's our best information coming back as part of this process, and I don't think there's anything wrong with that under Judge Lewis' order last night.

And also to go back to one other thing, in response to David. I think David put it put it very well about changing the rules in the middle of the game, but one other rule to this game is that every game needs a referee. And in this process, the referee is the Florida courts and, ultimately, the Florida Supreme Court. We think that's a very well-established tradition here in Florida and a very integral part of the Florida statutes. And we think ultimately the Supreme Court will recognize that and uphold the decision here.

Thank you very much.

RANDALL: In one of the classic understatements of this bizarre post-election period, Gore recount attorney David Boies telling reporters in Tallahassee a lot has gone on today.

Our Washington bureau chief Frank Sesno is here. Frank, what did you take away with you from you from what David Boies said?

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: Well, first of all, we've got an outline of what we're going to hear from the Gore at the United States Supreme Court. Three main points here that they're going to rebut when they go before those justices. There's no federal question here, first and foremost, that this is a matter of state law. And remember, you heard the U.S. Supreme Court justices asking questions, Ruth Bader Ginsburg for example, very forcefully along that line.

Two, according to the Gore attorneys, this is a conventional application of state law to what the Florida Supreme Court did to have this recount. The rules haven't been changed in David Boies's view. And finally that the standard is not whether the U.S. Supreme Court agrees or disagrees or should be with the Florida Supreme Court, but rather whether there's been unreasonable or arbitrary action taken by the Florida Supreme Court in which case the U.S. Supreme Court would have grounds for overturning this, at least according to David Boies.

Another very important thing we heard here, Gene, the dates. It's not December 12th that we're talking about.

RANDALL: This was a rhetorical shift, wasn't it?

SESNO: Well, yes, but it's also an important and substantive shift because up until now we've been hearing December 12th. It gets done by December 12th. Now, we're hearing December 18th. In point of fact, December 12th is not a drop-dead date. December 12th matters if you want the so-called safe harbor provision. That is to say, the electors selected and certified by December 12th cannot be challenged in the United States Congress. If they don't make that deadline, they still have to meet the Electoral College by December 18th but they are subject to challenge.

RANDALL: We should point out here, Frank, that we're awaiting the start of an interview of David Boies by our own Mike Boettcher in Tallahassee.

But Frank, you've been working the phones. How would are you gauging the political distress level in this town on Capitol Hill?

SESNO: Well, you know, we're all sort of running out of words, metaphors, and cliches. Whiplash would be the best thing I could recount to you today. I mean, we've been back and forth so many times on this. Gore is dead, Gore is back. They're preparing his demise. He's writing his concession. No, he's not. Challenging. What's very interesting is that the legal and constitutional experts, Gene, who have been looking into this thing with great detail over the last several weeks were as recently as in the last several hours contemplating perhaps three sets of electors being sent to Congress. One selected or certified by Governor Bush on November 26th, another by the state legislature which would come up next week and potentially, a third as demanded by a recount if it were to go to Al Gore. Potentially, that slate would also have to be certified by Governor Bush. So, you could actually have two slates of electors certified by the governor. One for George W. Bush, the governor's brother and the other for Al Gore after the recount.

RANDALL: All right, Frank, thanks.

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